What is Mediation?
Mediation is a settlement negotiation facilitated by a neutral third party mediator. A mediator’s main responsibility is to aid parties in reaching a settlement by supporting and assisting communication between the conflicting parties. Mediators do not make decisioins, find fault, or issue orders, rather they support the parties (and their attorneys) in creating a solution that works.
WHAT IS THE MEDIATION PROCESS?
Generally, the parties will meet with the mediator and informally explain their opinions of the dispute. After this step, the mediator will meet with each party separately with the intention of discussing the dispute in depth and to explore possible solutions to resolve the conflict. It is very common for a mediator to have multiple meetings with each party, either during the course of one day or over several sessions. Once the parties come to a verbal agreement they will generally enter into a written agreement which is signed by all the involved parties.
BENEFITS OF MEDIATION:
•Many individuals experience a higher degree of satisfaction through mediation than arbitration or trial because they have a higher level of control over the result and can play an active role in the dispute resolution
•Mediation is much more informal and flexible than arbitration or court hearings
Any agreement reached is voluntary.
DISADVANTAGES OF MEDIATION:
•It is difficult to get to the truth of the matter at hand because lawyers are not able to question individuals who would otherwise possibly reveal evidence under oath in a courtroom
•Bargaining power may not be equal as there are no formal rules or discovery
•If the parties cannot reach an agreement they will typically have to take the matter to trial which is more time consuming and expensive than mediation
LEARN MORE ABOUT MEDIATION – MOST ASKED QUESTIONS
What’s the difference between mediation and arbitration?
In mediation, as the mediator, I am a neutral third party who helps the parties reach an agreement. This requires compromise and each party moving away from their preferred positions and towards one another. Basically, I help figure out a solution. In arbitration, as the arbitrator, I make a decision and resolve the problem based on the information provided.
Do I have to be in the same room as the opposing party?
Nope. Many times mediation takes place by the “shuttle method” where I go back and forth between each party who are in separate rooms with their counsel. From time to time, the parties may choose to participate in a joint session, but that is not necessary and can be counterproductive.
I don’t think mediation will work, why should I bother?
Depending on the substantive issue, mediation may be required before the parties can go to trial, but whether required by court rule or not, mediation is a great opportunity to resolve your dispute in a way that is acceptable to you. Mediation allows the parties to maintain control over their result and allows for creative solutions. Going to trial means someone else decides what happens based solely on the evidence and governing law. For example, a couple could continue to co-own real estate through a mediation, that result is highly unlikely at trial where the court would most likely award the property to one person or order it sold.